Cynthia Terrazas v. Michael Astrue

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS

Plaintiff Cynthia Terrazas, by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record and applicable law, this Court affirms the Commissioner's decision.

I. Administrative Record

A. Procedural History

On September 29, 2004, Plaintiff filed for Title II disability insurance benefits, alleging disability beginning June 4, 2004. Her claim was denied initially on April 7, 2005, and upon reconsideration, on September 2, 2005. On October 20, 2005, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on March 8, 2007. On September 29, 2007, Administrative Law Judge James M. Mitchell ("ALJ") denied Plaintiff's application. The Appeals Council denied review on November 20, 2009. On January 14, 2010, Plaintiff filed a complaint seeking this Court's review.

I. Agency Record

In a 1974 motor vehicle accident while "off-roading," Plaintiff's right leg was crushed, including a fractured femur. Plaintiff (born October 16, 1957) was left in chronic pain, with her right leg 1.75 inches shorter than her left leg. After reaching adulthood, she worked as a bookkeeper and office clerk.

In 1999, Plaintiff had arthroscopic debridement (clean-out) of her right knee, a procedure that had previously relieved her pain. In 2001 and 2002, Plaintiff had reconstructive surgeries on both feet, apparently to repair bunions, although Plaintiff testified that the surgery was intended to resolve her right flat foot.

Plaintiff alleged that she stopped working on August 19, 2004, because of right knee pain and knee replacement surgery, carpal tunnel syndrome, and a deformed right knee and knee arthritis. She contended that her pain medications left her unable to work.

Supporting Plaintiff's September 2004 claim for state disability benefits, Alfred J. Coppola, Jr., M.D., opined that, even after the summer rest period, Plaintiff was disabled from returning to her occupation as a teacher.

In October 2004, Edward J. McPherson, M.D. performed knee replacement surgery on Plaintiff's right knee. When she was discharged from the hospital, her weight bearing activities were not limited.

On October 26, 2004, Coppola advised American Fidelity Assurance Company, Plaintiff's private disability carrier that Plaintiff could not continue to work due to shortening and deformity of her right leg and arthritis in her right knee. Coppola characterized Plaintiff's disability as permanent.

By late November 2004, McPherson noted that Plaintiff was content, could walk five blocks, and used a cane. Her knee had mild edema and mild warmth, and a smooth range of motion. Her calves were smooth, not tender, and had no cords. McPherson released Plaintiff to drive.

In a physical therapy report dated November 22, 2004, therapist Albert Vigil noted that Plaintiff reported only intermittent pain, reaching a level of 5/10. She took pain medication as needed. The range of motion in Plaintiff's knee was limited, however, and she could not kneel, squat, or go up or down stairs. She was able to walk bearing full weight with only a mild limp. Vigil opined that Plaintiff would continue to improve with further therapy.

In December 2004, Plaintiff was injured when she fell over a board that she had placed across a doorway to restrain a puppy. The record includes nothing to indicate that she then sought medical treatment.

On January 17, 2005, McPherson wrote to Plaintiff's former employer, advising them that she was permanently disabled. On February 25, 2005, McPherson prepared a letter to Sallie Mae in support of Plaintiff application to discharge her student loan. McPherson reported that Plaintiff was permanently disabled despite her recent knee replacement.

At a follow-up examination on February 28, 2005, Plaintiff reported
that the pain had improved and that her back pain was relieved.
McPherson observed that, despite a fall in December that injured
Plaintiff's left knee, the left knee maintained medial and lateral
joint spaces, with no fractures. All components in the right knee were
well fixed. Her back posture was also much better. According to
McPherson, Plaintiff was "definitely doing better," but needed to work
on endurance and stress the knee to build up drainage channels. He
recommended that Plaintiff walk a mile two to three times a week and
do stationary bike riding. Plaintiff was to wean herself from
Norco*fn2 and begin to use Naproxen*fn3
as needed.

In a medical source statement dated February 28, 2005, McPherson opined that Plaintiff could occasionally and frequently lift less than ten pounds due to leg pain and instability, stand or walk two hours in an eight-hour day due to leg pain with swelling, and sit two hours in an eight-hour day due to leg pain with swelling. She could occasionally climb or balance and could rarely ("almost never") stoop, kneel, or crouch. She could never crawl. Plaintiff could frequently reach, handle, finger, and feel.

In a pain questionnaire dated March 17, 2005, Plaintiff reported a variety of continuous pain in her lower back and hips, as well as headaches. She took hydrocodone and acetaminophen two or three times each day, which relieved the pain within 30-45 minutes but caused dizziness and drowsiness. She also relieved her pain with therapeutic exercise, elevation, rest, and ice. Plaintiff reported that she could not stand more than 20-30 minutes, sit more than 30 minutes, walk more than three blocks without a cane, exercise regularly, bend, kneel, or lift more than ten pounds. She did no vacuuming, climbing, or lifting.

After reviewing the agency file in March 2005, George W. Bugg, M.D., opined that Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds; stand or walk two to four hours in an eight-hour day and sit six hours in an eight-hour day.

X-rays from May 2005 revealed normal joints, normal bones, and normal soft tissues in Plaintiff's shoulders. In June 2005, x-rays revealed minimal degeneration of the acromioclavicular joint in Plaintiff's right shoulder, with no gross bone or joint abnormalities. Other x-rays revealed that Plaintiff's lumbar vertebrae were well-aligned; the intervertebral body spacing was within normal limits; there was no scoliosis or rotoscoliosis or lumbar instability, and no significant facet arthropathy. Treating orthopedist Marshall S. Lewis, M.D., reported that Plaintiff's hips were level.

Magnetic resonance imagery showed mild degenerative changes of the AC joint in an otherwise normal shoulder. Vertebral bodies were normally aligned; paraspinal tissues were normal; there was mild and small disc protrusion at a few levels; there was no subluxation, pathologic marrow infiltration, or fracture; but there was a small amount of subcutaneous edema.

Lewis prescribed a conservative course of physical therapy for Plaintiff's right shoulder and acupuncture.

In June 2005, Neurologist George S. Pineda, M.D. characterized the results of testing as revealing very mild carpal tunnel syndrome.

In a disability report dated June 3, 2005, Plaintiff complained of constant pain and problems concentrating. The deformity and arthritis in her right knee prevented her "from doing any type of daily activities." AR 96.

In a June 17, 2005 pain questionnaire, Plaintiff reported constant pain in her lower back and left hip, which she treated with hydrocodone and acetaminophen three times a day. The medication caused drowsiness and dizziness. Pain caused Plaintiff to stop activity every 20-30 minutes. She could walk 1/2 block outside her home, could stand for 10-15 minutes at a time, and could sit 30 minutes at a time. Because of her pain medication, she was no longer driving.

On June 30, 2005, Plaintiff saw Lewis to follow up on her shoulder. An MRI revealed it to be normal, except for some mild degenerative changes. Lewis prescribed no additional medication and recommended acupuncture and physical therapy.

In a disability report dated September 11, 2005, Plaintiff complained of worsened chronic pain in her lower back and right shoulder, as well as carpal tunnel in both hands. She could not lift more than one or two pounds, stand more than fifteen or twenty minutes, write, or work at a computer. She was often unable to sleep. She attributed the worsening of her pain to her December 2004 fall. Her medications included hydrocodone, Mobic,*fn4 Benezepril,*fn5 Estradiol,*fn6 Medroxypr,*fn7 Triamterene,*fn8 and Klor-Con.*fn9

At a October 2005 follow-up, Lewis prescribed no further treatment, finding medication sufficient to treat Plaintiff's pain.

In February 2006, Plaintiff complained to Pineda of pain down the front of her leg. Testing revealed normal nerve conduction and no findings of peripheral neuropathy.

Also in February 2006, Plaintiff complained to Lewis of left elbow pain. X-rays revealed slight bone periosteum*fn10 reaction without other gross bone or joint abnormalities. Lewis prescribed Flexeril*fn11 and a forearm splint (brace). Even though Plaintiff had been wearing the splint incorrectly, she had ...

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